Pita & Anor & Manard & Anor 2013 FMCAfam 296

The case involved a girl aged 5 years born of Samoan parents.  The girl was promised or gifted to a married relative who did not have children under a cultural practice similar to adoption known as vae tama.  The adoptive parents subsequently separated and the biological parents asked that the girl be returned to their care, but this was disputed by the adoptive mother who was an in-law of the biological parents, or was an aunt of the child.

There was general agreement that the girl had bonded well with all adults.  Her biological parents had three older children and the girl had bonded well with these siblings (sibling relationship).

Members of the Samoan community spoke of the vae tama tradition of passing care of a child to a relative who was childless.  The Samoan tradition differs from European adoption practices as the tie between the child and birth parents is not severed but regular contact is maintained between the child and biological parent.  Care of the child is transferred in the Samoan tradition and the child may return to the biological parents if the relationship between child and adoptive parent ends.  Samoan elders emphasised that the child continues to belong to the family group, and that if the adoptive relationship ends then the child is expected to return to the family group or blood-line.

The family was assessed by a family expert.  The assessor noted that the child had bonded with the adoptive mother or was attached, and that it would be difficult for the child if the relationship with the adoptive mother were to end.  The assessor recommended that the adoptive mother maintain parental responsibility for the child and that the child live with the adoptive mother.

The judge noted that the assessor was not experienced in the Polynesian culture, and had not assessed the child’s bonding with siblings (assessor limited expertise).  The judge considered that the assessor followed a Eurocentric approach that focused primarily on the bond with the mother figure (primary attachment figure).

The judge ordered that the biological parents hold parental responsibility and that the child live with the biological parents and spend time with the adoptive parent.